SPAIN Law and Practice Contributed by: Amparo Arbáizar, Arbáizar Abogados
Separation proceedings are treated like divorce pro ‑ ceedings, with the same effects, except the dissolu ‑ tion of the matrimonial bond. Nullity The grounds for nullity are different, and it is much more difficult to obtain an annulment than a divorce or separation. To obtain an annulment of the mar ‑ riage, one must prove the grounds of annulment of a contract, such as lack of free consent or goodwill or that the spouse entered into marriage because of fear, deceit, threats, etc. This is governed by Article 73 of the Civil Code. Other grounds for nullity are marriage Spain is a party to Council Regulation (EU) No 2019/1111 of 25 June 2019 on the jurisdiction, the recognition and enforcement of decisions in matri ‑ monial matters and the matters of parental respon ‑ sibility, and on international child abduction (recast). This Regulation currently rules the Spanish interna ‑ tional private law concerning international jurisdiction on divorce, and the grounds of jurisdiction set out in Article 3 of the Regulation apply. The Spanish Law on Judicial Power was reformed in 2015 with regard to international jurisdiction, and its Article 22 quáter (c) adopts the very same grounds for jurisdiction as Article 3 of the Regulation. Spain retains the residual jurisdiction on divorce when the following apply: • both parties are habitually resident in Spain at the time the proceedings are issued; • Spain was the last matrimonial habitual residence, and one of the spouses still lives there; with a minor, a close relative or polygamy. 1.2 Choice of Jurisdiction in Divorce Proceedings • Spain is the respondent’s habitual residence; • in the case of uncontested divorce, when one of the spouses is habitually resident in Spain; • the petitioner is habitually resident in Spain at least one year before proceedings are issued; • the petitioner is Spanish and has been habitually resident in Spain for at least six months before proceedings are issued; and • both spouses are of Spanish nationality.
The same grounds apply to same-sex marriages. Civ ‑ il partnership status is not regulated in the Spanish Civil Code or at a national level. Civil partners are not considered to be married, and therefore, they cannot apply for divorce. The main concept for determining jurisdiction is the habitual residence of the spouses. When both spous ‑ es have Spanish nationality, they can also apply for divorce in Spain. “Domicile” is not a legal concept in Spain’s jurisdiction. A party can contest jurisdiction within ten days of being served with the divorce petition. Due to a lack of international jurisdiction, the “Declinatoria” proceed ‑ ings are provided for by Articles 63–66 of the Spanish Law of Civil Procedure (LEC1/2000) and Article 39 of the Law on International Judicial Co-operation in Civil Matters (29/2015). As explained above, it is not possible to apply to stay proceedings in order to pursue divorce proceedings in a foreign jurisdiction apart from a challenging juris ‑ diction. Law No 29/2015 International lis pendens is ruled by Article 39 of Law No 29/2015, of 30 June, on International Judicial Co- operation in Civil Matters, which states the following. “1. When there exist pending proceedings with an identical object and cause of action, between the same parties, before a Spanish court, the Spanish court may stay proceedings, at the instance of a party and following a report from the Public Prosecutor’s office, always provided that the following require ‑ ments are met: The foreign court’s jurisdiction is based on a reason ‑ able connection with the litigation. The existence of a reasonable connection will be presumed when the foreign court has based its international jurisdiction on criteria equivalent to those provided for in Spanish Law for that specific case. It is foreseeable that the foreign court will issue a reso ‑ lution susceptible to being recognised in Spain; and
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